President Droupadi Murmu has rejected the mercy petition of Mohammed Arif alias Ashfaq, a Pakistani national and a member of the Lashkar-e-Taiba who was sentenced to death in the nearly 24-year-old Red Fort attack case in which three Army personnel were killed. According to the Rashtrapati Bhavan, the mercy petition of Arif was received on May 15 and turned down on May 27.
The President’s decision followed Arif’s unsuccessful attempts to seek relief from both the Delhi High Court and the Supreme Court in his appeals against a trial court verdict dating back to October 2005. The ruling found him guilty of conspiring with other militants to carry out the attack and accordingly sentenced him to death.
In 2007, the Delhi High Court confirmed the trial court’s decision following which Arif moved an appeal in the Supreme Court. On August 10, 2011, a Bench comprising Justices V.S. Sirpurkar and T.S. Thakur dismissed the appeal by characterising the attack as “a blatant, brazen-faced and audacious act aimed to overawe the government of India”. Highlighting the historical significance of the Red Fort as a national monument, the Bench concluded that the case met the “rarest of rare” standard for awarding the death penalty.
Thereafter, Arif continued to file successive petitions at the Supreme Court against the death sentence. The first review petition was rejected in August 2012, and the curative petition — heard by the five senior-most judges of the Supreme Court only on limited grounds — was rejected in January 2014.
Notably, Arif’s plea prompted a Constitution Bench of the Supreme Court to render a pivotal judgment in 2014, mandating that the review of death penalty cases be conducted in open court by a three-judge panel. The petitioners had challenged the practice of reviewing death sentences in the seclusion of the judges’ chambers while underscoring the need to afford death row convicts one last opportunity to fight for their lives.
In November 2022, nearly 22 years after the attack, a three-judge Bench led by then Chief Justice of India (CJI) U.U. Lalit dismissed Arif’s review petition noting that there were no mitigating circumstances in his favour and that the attack posed a direct threat to the country’s unity, integrity and sovereignty.
Also read:A case to dispose of mercy petitions swiftly
This is the second mercy plea rejected by President Murmu after assuming office on July 25, 2022. In April 2023, she had rejected the mercy plea of Vasant Sampat Dupare, convicted of raping and killing a four-year-old in Nagpur.
Clemency powers
As per the Constitution, in all cases where a convict has been sentenced to death, both the President and the Governor of the State where the crime has taken place exercise concurrent jurisdiction over mercy petitions. Under Articles 72 and 161, both constitutional authorities have the power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence”. However, the President does not exercise this power independently — Article 74 mandates that he or she has to act on the advice of the Council of Ministers. This principle was affirmed by the Supreme Court in Maru Ram v. Union of India (1980) while underscoring that the President cannot exercise his personal discretion while delibertaing upon mercy petitions.
Under these provisions, the President and the Governor retain the authority to evaluate the merits of the case independently without being bound by any judicial determination. Additionally, Article 74(2) of the Constitution prohibits any court from enquiring into “the question whether any, and if so what, advice was tendered by Ministers to the President”. This implies that there is no way to scrutinise how a President arrived at a decision unless the Council itself chooses to divulge the recommendation.
Once the death sentence awarded to the convict has been confirmed by the High Court or the Supreme Court, anybody, regardless of nationality, can submit a mercy petition to the Home Department of the concerned State, which then forwards it to the Governor with its advice on whether to accept or reject it. If the Governor declines the petition, it is forwarded, along with all relevant documents, to the Ministry of Home Affairs (MHA). The MHA then sends the petition to the President, with advice on how to act on it. The President can choose to endorse the recommendation or, if he or she disagrees, send the petition back for reconsideration. However, if the same recommendation is reiterated, the President is constitutionally obligated to accept it.
Also read: Mercy petitions: inhumane procrastination
Judicial review
The Supreme Court has consistently allowed judicial review of the President’s pardoning powers, but only to a limited extent, to avoid any miscarriage of justice. In Kehar Singh v. Union of India (1988), a Constitution Bench highlighted that the President’s pardoning powers under Article 72 operate distinctly from judicial powers. As a result, the President has the authority to conduct an independent assessment of the evidence on record and even come to a different conclusion from that recorded by the Courts. However, the Bench upheld the judicial review of the President’s decision without delving into the decision’s merits to ensure adherence to procedural requirements and constitutional principles.
In 2006, the top Court in Epuru Sudhakar & Another v. Andhra Pradesh elucidated further on the grounds for review by ruling that a decision under Article 72 can be challenged on grounds that (i) it was passed without application of mind; (ii) it is mala fide; (iii) it was passed on extraneous or wholly irrelevant considerations; (iv) relevant materials were kept out of consideration; (v) it suffers from arbitrariness.
Executive procrastination
The Constitution, while mandating that the President must not deviate from the recommendation of the cabinet, says nothing to keep him or her from indefinitely delaying a decision on a mercy petition. This is especially noticeable in cases where the President disagrees with the recommendation of the Council of Ministers. Reports have speculated that former Presidents such as KR Narayan, APJ Abdul Kalam and Pratibha Patil have sat on mercy petitions where they disagreed with the government’s advice. Moreover, former President Pranab Mukherjee is said to have rejected the advice of the government while commuting the death sentence in five cases.
However, the top Court has condemned such Executive procrastination and underscored that it violates the right to life and personal liberty guaranteed under Article 21 of the Constitution. In Shatrughan Chauhan and Anr v. Union of India (2014), the Court ruled that “undue, inordinate and unreasonable delay” in dealing with a mercy petition amounted to torture — a violation of the convict’s fundamental rights and constituted grounds for the commutation of a death sentence to life imprisonment.
Over numerous decisions, the Court has also debated the laying down of guidelines for the exercise of executive clemency to avoid any scope for arbitrariness. However, in Kehar Singh, the Court ruled against any such necessity. “It may not be possible to lay down any precise, cleanly defined and sufficiently channelled guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time,” it asserted.
Changes proposed under Bharatiya Nyaya Sanhita
The Bharatiya Nyaya (Second) Sanhita, 2023 (BNSS), which is set to replace the Indian Penal Code, 1860 (IPC), has introduced several changes to the procedure for filing mercy petitions. Section 473(1) through the phrase “convict under the sentence of death or his legal heir or any other relative” limits the right to file a mercy petition to the convicts or persons related to them. However, barring third parties such as legal aid organisations from filing such petitions could adversely impact death row convicts. This is primarily because many convicts typically lose contact with their families, endure substantial financial constraints, and grapple with other vulnerabilities, rendering them unable to effectively exercise their legal rights.
The new law also provides for several time limits. A convict must submit a mercy petition to the Governor or the President within 30 days of the Superintendent of Jail notifying the prisoner either about the Supreme Court’s dismissal of their special leave petition or about the High Court’s confirmation of the death sentence and the expiration of the time for filing an appeal or a special leave petition in the Supreme Court. However, in line with judicial precedents, no such time limits have been prescribed for consideration of mercy petitions by the President and Governor.
Notably, Section 473(7) stipulates that the President’s decision on a mercy petition is final and cannot be appealed against. It further underscores that “any question as to the arriving of the decision by the President” shall not be enquired into in any Court. This could severely restrict judicial oversight and result in a violation of the convict’s fundamental rights. As previously elucidated, the Supreme Court in a catena of judgments has permitted judicial review and a commutation of death sentences in instances of inordinate delays in deciding mercy petitions by the President or the Governor, or in cases where the decision suffers from arbitrariness or non-application of the mind.
